PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHRISTOPHER DEVON CRUDUP,
Defendant-Appellant.

No. 05-4048

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.
James C. Fox, Senior District Judge.
(CR-95-181-5-1-F)
Argued: May 26, 2006
Decided: August 7, 2006
Before WILKINS, Chief Judge, SHEDD, Circuit Judge,
and HAMILTON, Senior Circuit Judge.

Affirmed by published opinion. Judge Shedd wrote the opinion, in

which Chief Judge Wilkins and Senior Judge Hamilton joined.

COUNSEL
ARGUED: Jane Ely Pearce, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Christine Witcover Dean, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal Public Defender,
Stephen C. Gordon, Assistant Federal Public Defender, OFFICE OF

UNITED STATES v. CRUDUP

THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for

Appellant. Frank D. Whitney, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

OPINION
SHEDD, Circuit Judge:
Christopher Crudup appeals his 36-month term of imprisonment
imposed after the district court revoked his supervised release.
Crudup claims that the length of his revocation sentence is unreasonable.1 We affirm.
I.
In 1996, Crudup pleaded guilty to armed bank robbery and was
sentenced to 63 months imprisonment to be followed by 36 months
of supervised release. The district court imposed several conditions on
Crudups supervised release, including that he must not engage in any
criminal conduct, he must submit to drug-screen urinalysis, and he
must work regularly at a lawful occupation. After serving his term of
imprisonment, Crudup was released from federal prison in 2000 and
began his 36-month term of supervised release.
In July 2002, Crudup was arrested on various state charges, including assaulting a police officer with a deadly weapon and fleeing to
avoid arrest. In September 2002, Crudup pleaded guilty in state court
to the assault and flight charges and was sentenced to approximately
two years of confinement in state prison.
The federal probation officer assigned to supervise Crudup filed a
motion to revoke Crudups supervised release based on the state
offenses. During the supervised release revocation hearing, the district
court determined that Crudup violated the terms of his supervised
1

Crudup does not challenge the district courts decision to revoke his
supervised release.

UNITED STATES v. CRUDUP

release by engaging in criminal conduct. Nevertheless, the district

court concluded that "the ends of justice would best be served by
denying the motion for revocation . . . and continuing supervision
under the original terms and conditions imposed in this case." J.A. 15.
The district court warned Crudup, however, that if he violated the
conditions of his supervised release again the court would impose the
maximum applicable statutory revocation sentence 36 months
imprisonment.
Crudup was released from state custody in April 2004. Six months
later, on October 5, 2004, Crudup tested positive for using marijuana.
Rather than revoke Crudups supervised release based on this violation of the conditions of his release, the district court gave Crudup
"one last chance" and placed him in a more comprehensive drugdetection urinalysis program. J.A. 21. Crudup failed to submit to
required drug tests on seven occasions in October and November.
When Crudup finally submitted to a drug test on November 22, he
tested positive for marijuana and cocaine.
The federal probation officer again moved to revoke Crudups
supervised release based on his violation of three conditions: (1) failing to take required drug tests; (2) using illicit drugs; and (3) quitting
his job. The revocation worksheet completed by the probation officer
noted that all three grounds were Grade C violations. The worksheet
also calculated the applicable advisory sentencing range to be 5 to 11
months imprisonment based on the policy statements in Chapter 7 of
the United States Sentencing Commission Guidelines Manual.
At the revocation hearing, Crudup did not dispute the factual allegations of the motion for revocation. Crudup also admitted his drug
problem and requested drug treatment. The district court concluded
that Crudup violated the conditions of his supervised release by using
illicit drugs, by refusing to submit to drug tests, and by failing to work
regularly at a lawful occupation. After noting that the recommended
Chapter 7 range was 5 to 11 months, the district court sentenced
Crudup to 36 months imprisonment based on his numerous violations of the conditions of his supervised release and the district
courts previous warning to Crudup that he would get the maximum
statutory revocation sentence if he continued to violate his release

UNITED STATES v. CRUDUP

conditions. The district court also recommended that Crudup receive

intensive drug treatment while incarcerated.
II.
Crudups only argument is that the district courts variance from
the 5 to 11-month advisory sentencing range to the 36-month statutory maximum sentence is unreasonable. Crudup asserts that the advisory range of 5 to 11 months is presumptively reasonable and would
have punished him adequately.
The United States Supreme Courts recent opinion in United States
v. Booker, 543 U.S. 220 (2005), has engendered comment among several circuit courts as to what is the proper standard under which circuit courts should review supervised release revocation sentences.2
Before addressing the particular facts and circumstances underlying
Crudups revocation sentence, we first determine the proper standard
for our review.
A.
Chapter 7 of the Guidelines Manual deals with violations of supervised release and probation. Rather than issue guidelines to govern
sentences for these violations, the United States Sentencing Commission chose instead "to promulgate policy statements only" to give
courts "greater flexibility" in devising revocation sentences. Ch.7,
pt.A, introductory cmts. 1, 3(a).
Congress has provided in 18 U.S.C. 3742(a)(4) that a defendant
convicted of an "offense for which there is no sentencing guideline"
may appeal his sentence on the ground that it is "plainly unreasonable." In Booker, the Supreme Court recognized that defendants who
receive supervised release revocation sentences are authorized to
2

See United States v. Lewis, 424 F.3d 239 (2nd Cir. 2005); United
States v. Kirby, 418 F.3d 621 (6th Cir. 2005); United States v. Cotton,
399 F.3d 913 (8th Cir. 2005); United States v. Miqbel, 444 F.3d 1173
(9th Cir. 2006); United States v. Tedford, 405 F.3d 1159 (10th Cir.
2005); United States v. Sweeting, 437 F.3d 1105 (11th Cir. 2006).

UNITED STATES v. CRUDUP

appeal under 3742(a)(4) because these "sentences [are] imposed

where there [i]s no applicable Guideline." 543 U.S. at 262.
Congress also "set[ ] forth standards of review" for sentencing
appeals at 18 U.S.C. 3742(e). Booker, 543 U.S. at 259. Section
3742(e)(4) applies to supervised release revocation sentences because
it governs sentences "imposed for an offense for which there is no
applicable sentencing guideline." Id. This particular standard of
review requires the courts of appeals to "determine whether the
[supervised release revocation] sentence . . . is plainly unreasonable."
Id.
To remedy what it deemed to be a constitutional defect in the
guidelines, the Supreme Court in Booker excised 3553(b)(1) and the
standard of review provisions of 3742(e), thereby effectively rendering the guideline system advisory. United States v. Moreland, 437
F.3d 424, 431-32 (4th Cir. 2006). Thus, it appears that the "plainly
unreasonable" standard of review at 3742(e)(4) governing supervised release revocation sentences is no longer valid.3
3

It is arguable that Booker did not affect 3742(e)(4) at least as it

applies to supervised release revocation sentences. The part of the
Booker majority opinion holding that the guidelines violated the Sixth
Amendment noted that "[i]f the Guidelines as currently written could be
read as merely advisory provisions that recommended, rather than
required, the selection of particular sentences in response to differing sets
of facts, their use would not implicate the Sixth Amendment." 543 U.S.
at 233. Before Booker, we, along with the nine other circuits that
addressed the issue, held that the Chapter 7 supervised release policy
statements were "not binding on the courts" and only "provide helpful
assistance to courts in sentencing, but are not mandatory." United States
v. Davis, 53 F.3d 638, 640-41 n.9 (4th Cir. 1995) (cataloguing the circuit
courts holding that the Chapter 7 policy statements are not binding in
supervised release revocation sentences). Although the Supreme Court
had ruled pre-Booker that some policy statements and commentary were
binding on courts, see Stinson v. United States, 508 U.S. 36, 38 (1993)
(stating that commentary that interprets or explains a guideline is authoritative); Williams v. United States, 503 U.S. 193, 201 (1992) (holding that
if a "policy statement prohibits a district court from taking a specified
action, the statement is an authoritative guide to the meaning of the
applicable Guideline"), it had not addressed whether the Chapter 7 policy

UNITED STATES v. CRUDUP

Having excised the standards of review statutory provision applicable to sentencing, the Supreme Court proceeded to "infer appropriate
review standards from related statutory language, the structure of the
statute," and other practical considerations. Booker, 543 U.S. at 26061. Based on these considerations, the Supreme Court inferred a new
standard of review for sentencing appeals: "[A]ppellate courts [must]
determine whether the sentence is unreasonable with regard to [the
factors in] 3553(a)." Id. at 261.4
Because Booker reviewed an original guideline sentence imposed
after conviction and not a supervised release revocation sentence, the
question remains whether Bookers unreasonableness standard applies
to revocation sentences.5 Based on our review of the structure of
statements were mandatory and binding. Because the Supreme Court has
not decided this issue, we cannot state with certainty that the post-Booker
Supreme Court would deem 3742(e)(4) to still be valid as applied to
supervised release revocation sentences. Thus, we are bound by the
Supreme Courts broad ruling excising 3742(e) in its entirety.
4
Consistent with the mandate of Booker, we now follow the unreasonableness standard in our review of original sentences. See United States
v. Hughes, 401 F.3d 540 (4th Cir. 2005); United States v. Green, 436
F.3d 449 (4th Cir. 2006); Moreland, 437 F.3d at 432. We have not, however, specifically addressed the proper standard of review for supervised
release revocation sentences in a post-Booker published opinion.
5
We do not interpret Booker as ruling that supervised release sentences
must be reviewed under the unreasonableness standard instead of the
plainly unreasonable standard. In stating that its new unreasonableness
standard was a practical replacement for the mandatory guidelines, the
Supreme Court in Booker noted that appellate courts were already familiar with the unreasonableness standard because they had experience
applying it in several contexts, including in reviewing supervised release
and probation revocation sentences. 543 U.S. at 262. The Supreme Court
cited several illustrative cases, including United States v. White Face,
383 F.3d 733, 737 (8th Cir. 2004), United States v. Salinas, 365 F.3d
582, 588 (7th Cir. 2004), and United States v. Olabanji, 268 F.3d 636,
637 (9th Cir. 2001). In these three cases, the circuit courts reviewed the
revocation sentences under the "plainly unreasonable" standard of
review. It would be odd to suggest that the Supreme Court intended to
replace the "plainly unreasonable" standard when it cited cases which
used that very standard.

UNITED STATES v. CRUDUP

3742 and other related statutory and guideline provisions, we hold

that revocation sentences should be reviewed to determine whether
they are "plainly unreasonable" with regard to those 3553(a) factors
applicable to supervised release revocation sentences.6
We first note that the structure of 3742 suggests that "plainly
unreasonable" is the proper standard of review for revocation sentences. Under 3742(a)(4) a provision not invalidated by Booker
a defendant sentenced for violating supervised release is authorized to appeal only on the ground that his sentence is "plainly unreasonable." We infer from this provision that revocation sentences
should be reviewed under this same standard. It would seem incongruous that a defendant limited to asserting that his revocation sentence is "plainly unreasonable," would be allowed to argue that his
sentence should be reversed because it is "unreasonable."
Related guideline commentary and statutory provisions also suggest that revocation sentences should not be treated exactly the same
as original sentences. For instance, while the guidelines base original
sentences primarily on the severity of the defendants criminal conduct and criminal history, the commentary to the policy statements in
Chapter 7 make clear that district courts should focus on the defendants "failure to follow the court-imposed conditions of . . . supervised release as a breach of trust" when imposing revocation
6

The circuit courts that have considered this issue post-Booker either
decline to decide whether plainly unreasonable or unreasonableness is
the proper standard, use Bookers unreasonableness standard, or state
that unreasonableness is the same as, or similar to, the plainly unreasonable standard. See Miqbel, 444 F.3d at 1176 n. 5 (ruling that Bookers
unreasonableness standard displaces plainly unreasonable standard);
Sweeting, 437 F.3d at 1106 (deciding that unreasonableness essentially
the same as plainly unreasonable standard); Lewis, 424 F.3d at 243
(adopting Bookers reasonableness standard); Kirby, 418 F.3d at 625-26
n.3 (declining to decide if plainly unreasonable or Bookers unreasonableness standard is proper standard because sentence affirmable under
either standard); Tedford, 405 F.3d at 1161 (ruling that reasonableness
has always been the proper standard and remains so after Booker); Cotton, 399 F.3d at 916 (deciding that the Supreme Courts citation to White
Face in Booker indicates that unreasonableness is the same standard as
plainly unreasonable).

UNITED STATES v. CRUDUP

sentences. Guidelines Manual, ch. 7, pt. A, introductory cmt. 3(b).

"[I]mposition of an appropriate punishment for any new criminal conduct [is] not . . . the primary goal of a revocation sentence. Instead,
the sentence imposed upon revocation [is] intended to sanction the
violator for failing to abide by the conditions of the court-ordered
supervision." Id. In addition, rather than promulgate "a detailed revocation guideline system similar to that applied at the initial sentencing," the Sentencing Commission opted instead to classify all
revocation conduct into "three broad grades of violations." Id. The
fact that the Sentencing Commission chose to promulgate less precise,
nonbinding policy statements and to focus punishment on violations
of a court order rather than on the particular conduct giving rise to the
revocation, clearly suggests that the Sentencing Commission intended
to give district courts substantial latitude in devising revocation sentences for those defendants who violate a district courts orders governing their conduct during supervised release.
Moreover, in enacting 18 U.S.C. 3583 the criminal statute
governing supervised release violations and sentences Congress
expressly provided that some of the sentencing factors listed in
3553(a) applicable to original sentences are not applicable to revocation sentences. See 3583(e).7 Furthermore, unlike original sentences that have a guideline range and a separate statutory maximum,
the statutory maximum sentence for supervised release revocation
sentences is directly tied to the original term of supervisory release.
Section 3583(e)(3) specifically authorizes the district court to "revoke
a term of supervised release, and require the defendant to serve in
prison all or part of the term of supervised release" imposed at the
time of the original sentencing.
In addition, unlike the two circuit courts that have decided that
there is no difference between unreasonableness and the plainly
unreasonable standard, see Sweeting, 437 F.3d at 1106; Cotton, 399
F.3d at 916, we conclude that Congress intended a distinction
between the two terms. Congress used both terms "unreasonable"
and "plainly unreasonable" in 3742(e), the standard of review
section that Booker excised. Section 3742(e)(3) provided that the
7

The Booker Court specifically noted that 3583 was not affected by
its decision and remains "perfectly valid." 543 U.S. at 258.

UNITED STATES v. CRUDUP

court of appeals should review a sentencing departure from a mandatory guideline range to determine if it is "unreasonable." In contrast,
3742(e)(4) provided that the court of appeals should review sentences for offenses for which there is no applicable mandatory guideline range to determine if it is "plainly unreasonable." Because there
is no indication that Congress intended the word "plainly" to be surplusage, the best interpretation of these two terms in their context is
that they are not coterminous. Congress clearly intended the word
"plainly" to modify "unreasonable" in some way. See Chickasaw
Nation v. United States, 534 U.S. 84, 85 (2001) (recognizing the
canon of statutory interpretation requiring a court to give effect to
every word of statute unless giving effect would be repugnant to
remainder of statute); United States v. Williams, 364 F.3d 556, 559
(4th Cir. 2004).
In determining whether a sentence is plainly unreasonable, we first
decide whether the sentence is unreasonable. In conducting this
review, we follow generally the procedural and substantive considerations that we employ in our review of original sentences, as outlined
in our recent opinion in Moreland, 437 F.3d at 434, with some necessary modifications to take into account the unique nature of supervised release revocation sentences. For instance, as mandated by
3583(e), not all the original sentencing factors of 3553(a) can be
considered when reviewing a revocation sentence. According to
3583(e), in devising a revocation sentence the district court is not
authorized to consider whether the revocation sentence "reflect[s] the
seriousness of the offense, . . . promote[s] respect for the law, and
. . . provide[s] just punishment for the offense," 3553(a)(2)(A), or
whether there are other "kinds of sentences available," 3553(a)(3).
In addition, we also recognize that determining whether a revocation sentence is unreasonable "entails a deferential appellate posture
concerning issues of fact and the exercise of discretion." See Salinas,
365 F.3d at 588 (quoting United States v. Marvin, 135 F.3d 1129,
1136 (7th Cir. 1998)). Although a district court must consider the
"helpful assistance" contained in the Chapter 7 policy statements,
Davis, 53 F.3d at 640, along with the statutory requirements of 3583
and the 3553(a) factors applicable to revocation sentences, "the
court ultimately has broad discretion to revoke its previous sentence
and impose a term of imprisonment up to the statutory maximum,"

10

UNITED STATES v. CRUDUP

Lewis, 424 F.3d at 244 (quoting United States v. Pelensky, 129 F.3d
63, 69 (2d Cir. 1997)).8 Moreover, we agree with the Second Circuit
that "a courts statement of its reasons for going beyond non-binding
policy statements in imposing a sentence after revoking a defendants
supervised release term need not be as specific as has been required
when courts departed from guidelines that were, before Booker, considered to be mandatory." Lewis, 424 F.3d at 245.9
If we determine based on this review that a revocation sentence is
not unreasonable, the sentence should be affirmed. In such a circumstance, we do not proceed to the second prong of our review because
it necessarily follows that a sentence that is not unreasonable is also
not plainly unreasonable. However, if we determine that the revocation sentence is procedurally or substantively unreasonable, we must
then decide whether the sentence is plainly unreasonable, relying on
the definition of "plain" that we use in our "plain" error analysis.
Thus, for purposes of determining whether an unreasonable sentence
is plainly unreasonable,"[p]lain is synonymous with clear or,
equivalently, obvious." See Hughes, 401 F.3d at 547 (quoting
United States v. Olano, 507 U.S. 725, 734 (1993)).
B.
Having defined the proper standard of review, we now decide
8

It makes sense that district courts are given broader latitude to impose
statutory maximum revocation sentences. The risk of a district court
imposing an overly aggressive term of imprisonment is greatly reduced
in the revocation sentence context. No matter how serious the revocation
conduct and how extensive the defendants criminal history, the longest
possible revocation sentence a district court can impose is five years. See
18 U.S.C. 3583(b)(1),(e)(3).
9
It would be an odd result if Booker were interpreted to reduce the
level of discretion district courts have always had to devise revocation
sentences under policy statements that have uniformly been deemed nonbinding while giving district courts more discretion to impose original
sentences under guidelines that were deemed binding until Booker. Such
a reading of Booker would place the loose, flexible grid system envisioned by the Sentencing Commission for revocation sentences on the
same level as the precise guideline system devised for original sentences.

UNITED STATES v. CRUDUP

11

whether Crudups 36-month revocation sentence is within the applicable statutory range, see Hughes, 401 F.3d at 546-47, and is not plainly
unreasonable. Because we decide that Crudups sentence is within the
prescribed statutory range and is not plainly unreasonable, we affirm.
First, Crudups 36-month revocation sentence is within the applicable statutory range. When Crudup was originally sentenced in 1996,
the district court imposed a 36-month term of supervised release to
commence after Crudup completed his term of imprisonment. After
being released from prison, Crudup was subject, pursuant to
3583(e)(3), to a maximum 36-month term of imprisonment if the
district court were to find by a preponderance of the evidence that he
violated any of the conditions of his supervised release. See id.
(authorizing the district court to "revoke a term of supervised release,
and require the defendant to serve in prison all or part of the term of
supervised release authorized by statute for the offense that resulted"
in his original sentence) (emphasis added).
Second, Crudups revocation sentence is neither procedurally nor
substantively unreasonable. Procedurally, the district court expressly
considered the Chapter 7 advisory policy statement range of 5 to 11
months imprisonment,10 and Crudup does not argue that the district
court failed to consider any pertinent 3553(a) sentencing factors.
Substantively, the district court sufficiently stated a proper basis for
its conclusion that Crudup should be sentenced to the maximum statutory sentence. The district court noted in particular Crudups admitted
pattern of violating numerous conditions of his supervised release
any one of which would have subjected Crudup to the same advisory
5 to 11 month range despite the fact that the district court had
repeatedly extended leniency to Crudup in an effort to encourage his
compliance. The district court also noted Crudups need for substance
abuse treatment, and it recommended that Crudup receive intensive
10

We note that the district court correctly did not take into account
Crudups 2002 state court convictions in calculating his criminal history
for revocation purposes. Pursuant to 7B1.4(a), the proper criminal history for revocation sentence purposes is the "criminal history applicable
at the time the defendant originally was sentenced to a term of supervision."

12

UNITED STATES v. CRUDUP

substance abuse training while incarcerated. See United States v. Tsosie, 376 F.3d 1210, 1218-19 (10th Cir. 2004) (cataloguing opinions
affirming the imposition of lengthy revocation sentences to allow
defendants to undergo substance abuse treatment while in custody);
3553(a)(2)(D) (authorizing the district court to consider whether the
sentence would provide the defendant with needed substance abuse
treatment). Based on the broad discretion that a district court has to
revoke supervised release and impose a term of imprisonment up to
the statutory maximum, Lewis, 424 F.3d at 244, we cannot say that
the district courts imposition of the statutory maximum sentence
against Crudup is unreasonable. Because we conclude that Crudups
sentence is not unreasonable, it necessarily follows that his sentence
is not plainly unreasonable.
III.
For the foregoing reasons, we conclude that Crudups 36-month
revocation sentence is not plainly unreasonable, and we affirm the
judgment of the district court.
AFFIRMED